Recently in Ohio Category

Given some dispute and confusion in comments earlier, I asked Ken Lane, an attorney friend of mine who has considerable prosecutorial and civil law experience, especially in legal issues associated with local governments and administrative agencies, to write a paragraph or two on the role of appellate courts in cases like Freshwater’s appeal of his termination by the Mt. Vernon City Schools Board of Education. His excellent and helpful response is below the fold.

I’ve learned that leave has been granted for acceptance of the amicus briefs from the Dennis family and NCSE. The briefs in the case are now complete (see NCSE’s compilation). I’m told that Freshwater requested an expedited hearing, meaning that only the initially submitted briefs–plaintiff’s, defendant’s, and the two amicus briefs–will be in play. The case has been submitted to the appeals court where it will be heard by a three judge panel. They may or may not schedule oral arguments. If they do, I’ll try to be there.

Update: The Dennis family’s amicus brief is now up on NCSE.com.

The two main briefs in John Freshwater’s appeal of the Knox County Court of Common Pleas’ decision to uphold Freshwater’s termination by the Mt. Vernon Board of Education are now up on NCSE’s site. The two amicus briefs, from NCSE and the Dennis family, have not yet been accepted by the court. NCSE’s brief is on the site linked above; the Dennis’ brief is not yet available online, though I’ve read a copy.

I’ll briefly (!) summarize what I see as the core arguments of the briefs here, and go into more detail below the fold.

Freshwater’s appeal brief: Basically argues that (a) Freshwater only taught “alternative scientific theories”, (b) there are good pedagogical reasons to do so, and (c) he has free speech and academic freedom rights to do so. Also argues that the moves against Freshwater are motivated by religious animus, though it’s silent about specifically who feels that animus.

Board’s response brief: Argues that because student attendance is required and the public school has an interest in protecting itself against the consequences of illegal actions by teachers, Freshwater, as an agent and employee of the public school, does not have unfettered free speech or academic freedom rights. Also argues that the Common Pleas court did not abuse its discretion when it elected to not hold public hearings in view of the extensive record generated by the administrative hearing.

NCSE amicus brief: Puts Freshwater’s behavior in the context of the history of attempts to teach creationism in the public schools, and argues that his teaching was both pedagogically and scientifically unsound.

Dennis family brief: Reviews Freshwater’s impermissible injection of religion into his teaching, and disputes his de-emphasis of the Tesla coil incident, pointing out the inconsistencies in Freshwater’s stories about the incident.

The case is not yet scheduled for oral arguments. I’m told that Freshwater requested an expedited hearing, which I understand means that there will be no back-and-forth, no rebuttals and rejoinders, in the paperwork. What’s there now is what the appeals court will use to make its decision.

Some remarks and elaborations below the fold

As I reported a month ago, the Rutherford Institute, acting on behalf of John Freshwater, appealed Judge Otho Eyster’s decision in the Court of Common Pleas to the Ohio 5^th District Court of Appeals. Eyster ruled that the Mt. Vernon Board of Education’s termination of Freshwater was justified on the evidence of the administrative hearing.

Now additional documents are becoming available. The first to be publicly available is NCSE’s amicus brief (pdf). Yet to come are an amicus brief being filed by the Dennis family and the school board’s brief. The deadline for filing is today, January 13, and I expect that final copies will be publicly available soon. When they are I’ll write a longer post summarizing them after I have a chance to read them all.

The case is not yet scheduled for oral arguments before the Court of Appeals. The Court’s schedule is published through February, 2012.

In spite of adverse outcomes in the administrative hearing on his termination, in federal court, and in the County Court of Common pleas, John Freshwater is still pleading his case in the Christian media. On November 30, he was interviewed on David Barton’s Wallbuilders Live radio program. Ed Brayton has posted on some aspects of that interview, as has Wheat-dogg’s World.

My interest is in what Freshwater now says he was teaching about creationism and evolution in his 8^th grade science classes as contrasted with what he has claimed in the past. There was a good deal of testimony about that in the administrative hearing on his termination. His stories ranged from ‘I didn’t teach creationism’ (see his testimony here) to ‘I may have used creationist materials, but it was to illustrate bias and lack of objectivity in the interpretation of good science’ (see his testimony here). Now he has a new version: he taught “robust evolution.”

More below the fold.

Mt. Vernon, Ohio, as most PT readers know, has been the site of three years of legal maneuvering over John Freshwater. As a consequence of that, several creationists are running for school board here. There are three vacancies with six candidates, including two incumbents who voted to terminate Freshwater. One candidate is Steve Kelly, an official with the local Salvation Army.

Kelly is obviously a creationist. In an email response to a questioner, he wrote

I do not believe that the opening chapters of the book of Genesis belong in a science classroom. I do, however, believe that there is considerable scientific evidence that challenges the assumptions of the old-earth/evolutionary model. There is also significant scientific evidence for which the theory of an intelligent designer seems to fit the evidence better than random chance over a lengthy period of time. (I will be happy to cite some examples if you so desire.)

Our students deserve to have all theories of the origin of the world and species presented, along with evidence for and against each theory. (Quotes from religious texts do not constitute “evidence”.) All presentations should be consistent with the Scientific Method. Students can then decide for themselves which evidence seems more convincing. This is teaching our children to be independent thinkers rather than just absorbers of official dogma.

That said, the School Board has no right to abridge or abrogate any curricular requirements set by the State of Ohio. Where requirements exist, I will , if elected, follow the law.

That last sentence is all well and good, but the preceding two paragraphs are real problematic. So another person pressed Kelly about those “examples.” In response Kelly wrote

Here is a link to a page at Conservapedia.com. While I do not necessarily endorse everything on that website, this is a helpful compilation of counterexamples to an old earth. See all of the references at the bottom of the page for source material. > > http://www.conservapedia.com/Counte[…]an_Old_Earth

Gack! So I was forced to respond to Kelly’s claim in an open letter first published on Facebook (Parts 2-4 are in the comments to Part 1: Facebook posting limits and formatting regularly defeats me). I’ll reproduce that open letter below the fold with very light editing to correct a couple of typos and more substantial editing to correct an error.

A while back I mentioned that one of the legal proceedings initiated by John Freshwater in aid of his quest to regain his teaching job was a complaint to the Ohio Civil Rights Commission alleging religious discrimination by the school district in his firing. I’ve finally learned that the Commission dismissed that complaint way back last June, saying

Based on the investigation conducted in this matter, the Ohio Civil Rights Commission has determined that there is No Probable Cause to believe that the Respondent [the school district] engaged in an unlawful discriminatory practice under section 4112 of the Ohio Revised Code and hereby orders that this matter be Dismissed. (bolding in the original)

Still in progress (if that’s the right word!) are Freshwater’s complaint (on the same ground) to the U.S. Equal Employment Opportunity Commission and his appeal of Judge Otho Eyster’s decision on Freshwater’s appeal of his termination in the state court system.

Today Judge Otho Eyster of the Knox County (Ohio) Court of Common Pleas denied John Freshwater’s appeal of his termination as a middle school science teacher by the Mt. Vernon City Schools. In his ruling (Page 1 and Page 2, both PDFs at the Mount Vernon News site), Judge Eyster wrote that “Based on the number of witnesses and exhibits presented at the Referee’s hearing held over a period of twenty-one (21) months, the Court finds Freshwater’s request that the Court conduct additional hearings is not well taken.” Further, the Judge wrote, “…there is clear and convincing evidence to support the Board of Education’s termination of Freshwater’s contract(s) for good and just cause,…”.

In the decision Freshwater was ordered to pay the costs of the proceeding.

As I understand it, Freshwater still has the option to pursue an appeal of Judge Eyster’s ruling up the ladder of the state courts. As far as I know he still has the support of the Rutherford Institute. No public comments by Freshwater and/or that Institute concerning the Court’s ruling have as yet been made.

UPDATE As foreshadowed just above, The Rutherford Institute today (Oct 6) issued a press release saying it will appeal Judge Eyster’s decision to the Ohio 5^th District Court of Appeals. (Hat tip to Accountability in the Media, a site operated by Freshwater supporters.)

I’ve seen a report originating with an anonymous member of the public who attended the Springboro Board of Education meeting on Tuesday of this week. According to the report, approximately 12 members of the public, including at least one representative of the local teachers union, spoke against the proposal to explore including creationism in the Springboro school curriculum. No one spoke in favor of the proposal, and at least one board member was reported to have claimed that the whole thing was taken out of context and that they were just asking questions. It appears that the board is moving on, abandoning the issue at least for the time being.

Kelly Kohls, the nutritionist and school board member in Springboro, Ohio, who advocated teaching creationism in that district, has revised her position. She now says that she

…wants parents of students in public schools to have options if they want their children to learn about theories like intelligent design.

and that

… parents should have the choice of using state funds to send their children to other schools if they want to learn about creationism and intelligent design.

A potential route, she thinks, is school vouchers, where state money is paid to parents to send their children to private, often sectarian, schools.

Read more in the Dayton Daily News. One parent quoted there has exactly the right idea:

Tina Gangl, who has a daughter in Springboro elementary school and a son at the nearby Catholic Bishop Fenwick High School, said public schools should not teach religion.

“We need to educate our children about science,” Gangl said, “If I want to teach my religion to my kids I’ll send them to a religious school. There is no place for it in public school.”

Springboro, Ohio, described by Wikipedia as “an affluent suburb of Cincinnati and Dayton,” has a school board on which two members are pushing for the inclusion of creationism in the district’s science curriculum. The Dayton Daily News reported today that BOE members Kelly Kohls and Scott Anderson, elected on a platform of fiscal responsibility, are one vote away from a creationist majority on the Board. According to the story, Kohls requested that

… the district’s curriculum director look into ways of providing “supplemental” instruction dealing with creationism.

It goes on

“Creationism is a significant part of the history of this country,” Kohls said. “It is an absolutely valid theory and to omit it means we are omitting part of the history of this country.”

Consistent with Lenny Flank’s law, though, Kohls makes the motivation for her advocacy of creationism clear:

Kohls is the head of the Warren County Tea Party. Although she said her desire to teach creationism is not directly related to the emerging political movement, it’s not inconsistent with Tea Party ideals.

“My input on creationism has everything with me being a parent and not a member of the Tea Party,” she said. “We are motivated people who want to change the course of this country. Eliminating God from our public lives I think is a mistake and is why we have gone in the direction of spending beyond our means.”

Nice.

There’s some support for the push from another source:

John Silvius, a former biology professor at Cedarville University, a Christian institution that teaches both evolution and creationism, said the two theories can co-exist, even in a public school classroom.

Cedarville is a Baptist young-earth institution; it even has a young earth geology program, taught, it is claimed, from “both naturalistic and young-earth paradigms of earth history.”

I trust that the curriculum director will read documents like Edwards v. Aguilar, McLean v. Arkansas, and Epperson v. Arkansas, not to mention Kiztmiller v. Dover. I also hope that the Board’s legal advisers have their wits about them.

The two creationism-pushing board members were supposedly elected on a fiscal responsibility platform. How fiscally responsible is it to expose the district to expenses in the hundreds of thousands of dollars by advocating a bankrupt religious approach in public schools? The Mt. Vernon, OH, and Dover, PA, boards could provide Springboro with some advice on just how “fiscally responsible” pushing creationism is. The same sort of shenanigans cost those districts on the order of $1m each.

In a Columbus Dispatch story we learn that John Freshwater has recently sold his home and small farm to pay legal costs associated with his effort to retain his job as a middle school science teacher in Mt. Vernon, Ohio. That saddens me. While I disagree vehemently with the various shenanigans in his classroom described during the 38 days of administrative hearing on his termination, it gives me no pleasure at all to know that Freshwater is no longer on his land tending to his apple trees and evergreens and selling apples and Christmas trees in town in their season.

A while back I noted that the Ohio Department of Education had sent John Freshwater a letter of admonishment concerning his use of a Tesla coil in his middle school science classroom. Freshwater objected, and the Rutherford Institute joined his defense.

Now the Rutherford Institute has posted a press release announcing that the letter of admonishment has been removed from Freshwater’s record by the Ohio DOE. Apparently it’s to ascertain whether ODE’s procedures were followed in issuing the admonishment. From the press release:

In its letter, the ODE stated that it is investigating The Rutherford Institute’s charges that the admonishment against Freshwater was issued in defiance of Freshwater’s due process rights and in violation of the Department’s own rules. Institute attorneys insist that the ODE’s issuance of the admonishment violated Freshwater’s due process rights because the teacher was not given proper notice or an opportunity to defend himself against the charges.

I’m also informed that a new 5-year professional teaching license to teach high school, for which Freshwater had applied early this year, was issued by the Ohio DOE on April 8, 2011. So the Department of Education has apparently taken a complete pass on any disciplinary action concerning Freshwater.

As I posted in March, the Ohio Department of Education issued a Letter of Admonishment to John Freshwater (PDF of the letter) for using a Tesla coil on middle school students.

Freshwater, through his attorney R. Kelly Hamilton, objected to the Letter of Admonishment. In a lengthy (188 page PDF!) objection, he argued that the local district’s action settled the issue, that Zachary Dennis was lying in his testimony, and that the Letter of Admonishment was “erroneous, defamatory and unwarranted.” (Mount Vernon News story.)

The Dennis family recently filed a rebuttal (PDF) arguing not only for the retention of the Letter of Admonishment but also that Freshwater’s teaching certificate (which expired last year) should not be renewed. (Mount Vernon News story.)

Still pending are Freshwater’s appeal of his termination in the Knox County Court of Common Pleas and his complaints to the Ohio Civil Rights Commission and to the federal Equal Employment Opportunity Commission. I have no information on their progress (or lack thereof).

As I noted in a comment a few days ago, federal judge Gregory Frost remanded John Freshwater’s appeal of his terrmination back to the Knox County Court of Common Pleas. Now according to a press release today, April 11, the Rutherford Institute has agreed to assist Freshwater in the appeal of his termination.

The press release says

The Rutherford Institute is defending a Christian teacher who was allegedly fired for keeping religious articles in his classroom and for using teaching methods that encourage public school students to think critically about the school’s science curriculum, particularly as it relates to evolution theories.

More below the fold.

See update at the end of the post.

John Freshwater, the Mt. Vernon, Ohio, middle school science teacher recently terminated by the Board of Education, has filed a Notice of Appeal (search by name for “Freshwater”) in the Knox County Court of Common Pleas. A Notice of Appeal is just that: It notifies the court (and public) that the plaintiff intends to appeal a decision of some other body to that court–it essentially reserves the option to file an appeal but does not require filing. Thereafter the plaintiff has a set period, typically 20 or 30 days (though I don’t know if teacher terminations have a different deadline), to file the appeal document itself detailing the respects in which the decision being appealed was allegedly faulty and therefore warrants overturning by the court.

Freshwater was terminated on two basic grounds outlined by the administrative hearing referee in his final report, violating the establishment clause of the First Amendment to the Constitution by teaching creationism and advocating for his fundamentalist Christian beliefs in school, and insubordination.

Freshwater filed the Notice of Appeal pro se, meaning that he is acting as his own attorney in the action. I have no information on whether he will seek professional legal advice in preparing the actual appeal document.

I do not presently have links to copies of the documents Freshwater submitted with the Notice of Appeal except for Hamilton’s final brief, which is the Closing Statement Brief (4Mb PDF). The most interesting documents appear to be “Complaint Filed with Resolution”, “Letter,” “John Freshwater’s Reply Brief to the Employer’s Post-Hearing Brief,” and “John Freshwater’s Closing Statement Brief.” As much as I can obtain will all be online soon on the relevant NCSE page.

If the Court of Common Pleas denies the appeal, the next (and last!) step would be for Freshwater to appeal that rejection to the state appellate court.

=======================

Update: I heard late this afternoon that Freshwater has gone ahead and actually filed his appeal, including the various documents and thousands of pages of the hearing transcript. I hope to have more information tomorrow.

This is the full text of the termination resolution adopted by the Mt. Vernon City Schools Board of Education on January 10, 2011. Turns out the mover didn’t read the whole thing.

==========================================

RESOLUTION TO TERMINATE ANY AND ALL EMPLOYMENT CONTRACTS OF JOHN FRESHWATER WITH THE BOARD OF EDUCATION EFFECTIVE 11:59 P.M. ON JANUARY 10, 2011

WHEREAS, John Freshwater (“Mr. Freshwater”) is currently employed by the Board as an eighth grade science teacher as Mount Vernon Middle School; WHEREAS, as a result of his position with the Board, Mr. Freshwater is a member of the bargaining unit represented by the Mount Vernon Education Association (“MVEA”) and is governed by the terms and conditions of employment set forth in the collective bargaining agreement between MVEA and the Board (the “Agreement”);

WHEREAS, the Board has promulgated reasonable policies, rules and standards for the management and control of its workforce and for the safe and efficient governance of its employees, in compliance with State and Federal law;

WHEREAS, the Board not only expects, but requires, its employees to adhere to the reasonable policies, rules and standards promulgated by the Board, as well as State and Federal law;

WHEREAS, Mr. Freshwater is an employee and charged with and compensated for not only his performance while at work but also for his knowledge of and adherence to the aforementioned Board policies, rules and standards, as well as State and Federal law;

WHEREAS, Ohio Revised Code §3319.16 sets forth that a teacher employed by the Board of Education may be terminated for “good and just cause;”

WHEREAS, under the Agreement and the statutory law of Ohio, Mr. Freshwater is subject to R.C. §3319.16 and may be terminated for “good and just cause;”

WHEREAS, under Section 3319.16, Mr. Freshwater was provided notice, signed by the Treasurer, of the Board’s intention to consider the termination of his teaching contract(s);

WHEREAS, Mr. Freshwater filed a written statement with the Treasurer on June 30, 2008, requesting a public hearing before the Board;

WHEREAS, the Board requested that a Referee preside over the hearing, as appointed by the State of Ohio Superintendent of Public Instruction, pursuant to Section 3319.16 of the Revised Code;

WHEREAS, a Referee conducted a public hearing, commencing October 2, 2008 and extending through June 22, 2010, with testimony and evidence offered by Mr. Freshwater and the Board;

WHEREAS, the Referee issued a Report on Friday, January 7, 2011, recommending “the Board of Education of the Mount Vernon City School District … terminate John Freshwater’s contract(s) for “good and just cause;”

WHEREAS the Board adopts the Referee’s Report, finding the following conduct as “good and just cause” under Revised Code Section 3319.16 for the termination of Mr. Freshwater’s teaching contract(s):

§ Mr. Freshwater injected his personal religious beliefs into his plan and pattern of instructing his students. In doing so, he exceeded the bounds of all the pertinent Bylaws/Policies of the Mount Vernon City School District;

§ In 2003, Mr. Freshwater unsuccessfully petitioned the Board to allow him “to critically examine the evidence both for and against evolution.” Despite the Board’s rejection of this proposal, Mr. Freshwater undertook the instruction of his eighth grade science students, as if the suggested policy had been implemented;

§ On more than one occasion, Mr. Freshwater was reminded by his superiors that he must abide by the Bylaws & Policies, as they related to religion in the curriculum;

§ Mr. Freshwater’s “evidence” against evolution was based, in large part, upon the Christian religious principals of Creationism and Intelligent Design;

§ Mr. Freshwater’s use of “against evolution” materials ran afoul of the District’s Bylaws/Policies;

§ Mr. Freshwater used unauthorized handouts to challenge evolution, based in large part upon the Christian religious principals of Creationism and Intelligent Design;

§ Mr. Freshwater used motion pictures (Expelled; No Intelligence Allowed) and videos (the Watchmaker) to challenge evolution, which were based in large part upon the Christian religious principals of Creationism and Intelligent Design;

§ Mr. Freshwater taught his students to use the code word “here” when teaching students to question printed materials from science textbooks, which were approved and provided by the Board;

§ Mr. Freshwater taught his eighth grade students that homosexuality is a sin, so anyone who chooses to be a homosexual is a sinner. Mr. Freshwater also taught his students that science and scientists can be wrong when they declare that there is a genetic predisposition to homosexuality;

§ Mr. Freshwater not only injected his subjective, biased, Christian religion based, non-scientific opinion into the instruction of eighth grade science students but also gave those students reason to doubt the accuracy and or veracity of scientists, science textbooks, and/or science in general;

· Mr. Freshwater acted in defiance of direct instructions and orders of the administrators (Insubordination);

§ Mr. Freshwater was directed to remove or discontinue the display of all religious articles in his classroom, including all posters of a religious nature, and whereas, Mr. Freshwater has failed to comply with that directive and, further, has brought additional religious articles into his classroom, in a direct act of insubordination;

WHEREAS, the Referee’s Report has determined that the multiple incidents described above, in total, represent a sufficient bases/grounds for termination; the Board further determines that each individual action independently constitutes “good and just cause” for the termination of Mr. Freshwater’s teaching contract(s), whether considered individually or jointly;

NOW THEREFORE BE IT RESOLVED, that the Board terminates any and all employment contracts of Mr. Freshwater with the Mount Vernon City School District Board of Education. The Treasurer shall furnish Mr. Freshwater with written notice, denoting the Board’s termination of his employment contract “for other good and just cause,” in accordance with Ohio Revised Code §3319.16 and the collective bargaining agreement.

BE IT FURTHER RESOLVED, that Mr. Freshwater’s termination shall take effect at 11:59 p.m. on January 10, 2011.

BE IT FURTHER RESOLVED, that it is hereby found and determined that all formal actions of the Board of Education concerning and relating to the adoption of this Resolution were adopted in an open meeting of the Board, and that all deliberations of the Board and any of its committees that resulted in such formal action were open to the public when required by law, in full compliance with the law.

UPON ROLL CALL AND THE PASSAGE OF THE FOREGOING RESOLUTION, the vote was as follows:

Mrs. Paula Barone: Yea

Mrs. Jody Goetzman: Yea

Mrs. Sharon Slane-Fair: Yea

Mr. Steve Thompson: Nay

Dr. Margie Bennett: Yea

The foregoing is a true and correct excerpt from the minutes of a meeting of the Board of Education of the Mount Vernon City School District conducted on January 10, 2011.

Knoxpages.com is reporting this morning that R. Lee Shepherd, the referee in the administrative hearing on the termination of John Freshwater as a middle school science teacher in Mt. Vernon, Ohio, has recommended that Freshwater be terminated. I don’t have the referee’s report yet, and will post more when I do. Meanwhile see Adam Taylor’s story at the linked site.

Just a note to say that I’ve learned that John Freshwater did sign the settlement agreement with the Dennis family prior to it being approved (insofar as the terms relating to Zachary are concerned) by Licking County Juvenile Court Judge Hoover. While the settlement agreement was negotiated by the Board’s insurance company attorneys, Freshwater as the defendant had to sign off on it, and he did.

AFAIK all that’s left now is Federal Judge Gregory Frost’s overall approval of the settlement and, of course, the concluding acts–referee’s recommendation and Board of Education action on it–of the administrative hearing. Then at last perhaps this sorry episode can be closed.

Update: Judge Frost has signed off on the settlement. See comment below.

The Mount Vernon News reported today that the probate court in Licking County, Ohio, has approved the terms of the settlement of Doe v. Mt. Vernon BOE, et al.. The sole remaining defendant had been John Freshwater, the Board having settled more than a year ago. According to the News’ story, the settlement terms give the Dennis family $25,000 in attorney fees and $150,000 each to Jenifer and Stephen Dennis as well as $150,000 in an annuity for Zachary, all of it from the Board’s insurance company (Freshwater was sued as an employee of the Board).

The only remaining proceeding still to be finished is the referee’s recommendation based on the administrative hearing, with Board action on the recommendation to follow. The referee reportedly hopes to finish his recommendation by the end of 2010.